Local Activists Takes On KU Med Center...

9/4/10[Editor's note: Please Contact Barbara Atkinson, KU Med’s Executive Vice
Chancellor, and tell her that what KU Med is doing to primates is wrong
and to stop wasting our tax money on cruelty and fraudulent science! She is
at (913) 588-1440 and BATKINSON@kumc.edu.

AND

Contact Francis Collins, Director of the National Institute of Health (KU
Med’s source of funding) at 301-496-2433 and
francis.collins@nih.gov and tell him to stop providing public
monies to a “research facility” that was cited for 160 violations of animal
welfare laws by the USDA!]

Here is the local media’s take on the situation (note that KCTV 5 mistakenly
stated that KU Med vivisects chimps. Their victims are actually macaques and
squirrel monkeys):

Here is my take:

With respect to the University of Kansas Medical Center’s statement in the
KCTV 5 news clip, “Center officials said they have fixed the problems, but
none of the issues dealt with animal welfare,” it is an utter fabrication.
The University of Kansas Medical Center has blatently lied to the media and
to the public (who is funding their abject animal cruelty with millions of
tax dollars) throughout our campaign to shut down their primate vivisection
program.

Sorry for the delayed response, but I’ve been preoccupied with other animal
defense issues.

In light of this 12/31/09 article from the Kansas City Star, I fully
understand why you would deny our request to observe and document the
“ethical research” funded by our tax money and why you would also bar the
media from entry to your laboratories.

As I’m sure you are aware, Mara Rose Williams of the Star wrote:

USDA cites KU Medical Center for violation of animal protection laws

“The University of Kansas Medical Center has been cited for about 160
violations of federal animal protection laws during experiments at
university laboratories….

….The USDA report describes how monkeys that were afflicted with an
infectious disease were left to suffer from extreme weight loss, vomiting,
diarrhea and neurological disorders for at least a day after they met
criteria for euthanization. The monkeys were part of a study funded by the
National Institutes of Health.

People for the Ethical Treatment of Animals has called for the NIH to take
back federal grant dollars awarded to KU Medical Center for that research in
which the violations occurred……”

According to the annual report filed with the USDA by the University of
Kansas Medical Center, this facility experiments on and/or holds captive
about 150 primates per year, a relatively small amount. The report which
contains this statistic is a bland one page document which belies the cruel
reality that it represents.

A cross-section of the lives of these animals is represented by a stack of
documents which is just over a foot tall. The existence of these highly
intelligent animals has been reduced to so much paper and ink. Their
identities represented only by numbers, their passing marked only by the
word “euthanized.”

The University of Kansas Medical Center has become known for violating the
Animal Welfare Act. In fact, recent inspections for the period from
September 2007 to June of 2009 catalogue 58 pages of violations, many of
which involve primates and their deaths. The USDA inspectors who wrote these
documents uncovered heinous acts of cruelty which prolonged the pain these
animals endured. One monkey was allowed to deteriorate so severely that
his/her weight dropped by 26.8%, or just over ¼. Another primate, whose
skull had been opened to have a recording chamber put into place, did not
receive anything close to adequate treatment. These recording chambers can
harbor serious bacterial infections which can lead to brain abscesses, and
so they are supposed to be cleaned regularly. The chamber of one animal at
this facility had not been cleaned for three weeks. It is amazing that s/he
was still alive.

Another monkey who died during 2008, #0A0, lost 22% of his body weight,
which should have been sufficient to qualify for euthanasia. However, the
suffering of this animal was allowed to continue. The USDA report states:
“He was sitting curled up on his perch while I was hosing his cage and would
make a screeching sound. I gave him a cereal bar, but he was having
difficulty picking it up….

On Thursday, September 2, the issue of the vivisectors’ TRO’s against me was
meant to be laid to rest.

However, the three vivisectors, who were previously unrepresented, arrived
with an attorney, Tim Keck. He advised David Bell, my attorney, that he had
several witnesses to attest to the stalking allegations in the TRO’s.

I have posted David Bell’s well-constructed and powerful argument, which he
has filed with the court as a brief, below. As you will read, our position
is that none of the allegations in the TRO rise to the level of “stalking”
(and some are false) and that the TRO is an infringement on my First
Amendment rights.

Since David was not apprised of the witnesses in advance, Judge Phelan
agreed to continue the hearing until 11/30 at 9AM. Due to the highly
contentious and complex nature of this situation, he has set aside an entire
day for this hearing.

Most TRO hearings are over in about 5 minutes and a vast percentage of them
pertain to domestic violence situations. This is a significant battle for
Constitutional rights and the ability of social justice activists to
exercise their First Amendment rights.

Here is David’s argument, which is long but so powerful that it is well
worth the read:

RESPONDENT’S SUGGESTIONS AND SUPPORT IN OPPOSITION TO PETITIONERS’
REQUEST FOR ORDER OF PROTECTION

COMES NOW Jason Miller (hereinafter “Respondent”) by and through counsel,
and hereby submits suggestions and support in opposition to Petitioners’
Request for Order of Protection filed against him pursuant to K.S.A.
60-31a01, et. seq.

ARGUMENT

Respondent’s alleged conduct is protected under the First Amendment of the
United States Constitution, made applicable to the state of Kansas through
the Fourteenth Amendment, and therefore any action brought pursuant to K.S.A.
60-31a01, et. seq., is barred.

The First Amendment, applicable to the States through the Fourteenth
Amendment, provides that “Congress shall make no law … abridging the freedom
of speech.” Virginia v. Black, 538 U.S. 343, 358 (U.S. 2003). The hallmark
of the protection of free speech is to allow “free trade in ideas”– even
ideas that the overwhelming majority of people might find distasteful or
discomforting. Id. The First Amendment affords protection to symbolic or
expressive conduct as well as to actual speech. Texas v. Johnson, 491 U.S.
397, 404-405 (U.S. 1989). “The First Amendment protects [Respondent’s] right
not only to advocate their cause but also to select what they believe to be
the most effective means for so doing.” Meyer v. Grant, 486 U.S. 414, 424
(U.S. 1988). First Amendment standards “must give the benefit of any doubt
to protecting rather than stifling speech.” Citizens United v. FEC, 130 S.
Ct. 876, 891 (U.S. 2010). It is not acceptable for the state to prevent a
speaker from exercising his constitutional rights because of the reaction to
him by others. Beckerman v. Tupelo, 664 F.2d 502, 509 (5th Cir. Miss. 1981).

The Protection from Stalking Act was enacted in order to protect victims of
stalking and to facilitate access to judicial protection for stalking
victims. K.S.A. 60-31a01. As defined by the act, “stalking” means an
intentional harassment of another person that places the other person in
reasonable fear for that person’s safety; “harassment” means a knowing and
intentional course of conduct directed at a specific person that seriously
alarms, annoys, torments or terrorizes the person, and that serves no
legitimate purpose; and all constitutionally protected activity is not
included within the meaning of “course of conduct.” K.S.A. 60-31a02.

Three separate Petitions for Protection From Stalking Orders (“Petitions”)
were filed against Respondent pursuant to K.S.A. 60-31a01, et. seq.
Petitions were filed by (1) Dianne Durham, Ph. D, Kansas University Medical
Center, Otolaryngology Department, Director of Research (“Durham Petition”);
(2) Paul D. Cheney, Ph. D., Kansas University Medical Center, Department of
Molecular and Integrative Physiology, Director of Research (“Cheney
Petition”) and (3) Navneet K. Dhillon, Ph. D., Kansas University Medical
Center, Post Graduate Institute of Medical Education & Research (“Dhillon
Petition”). Collectively, Petitions alleged that an order of protection is
necessary to protect from harassment by Respondent. Petitions also stated
that each individual feared for their safety.

Respondent is a known Animal Rights Activist. Approximately six months prior
to filing of the Petitions, Respondent learned through an Animal Rights
Organization called “Stop Animal Exploitation Now” that Kansas University
Medical Center (“KUMC”) was engaged in the practice of conducting medical
experiments on primates. Upon learning of said experimentation, Respondent
conducted his own investigation into the policies of KUMC as it concerns the
treatment of primates. Specifically, Respondent learned of an article
published in the Kansas City Star on December 31, 2009, which stated that
KUMC had been cited for 160 violations of federal animal protection laws
during experiments at university laboratories. The article quoted a USDA
report which described how monkeys that were afflicted with an infectious
disease were left to suffer from extreme weight loss, vomiting, diarrhea and
neurological disorders for at least a day after they met criteria for
euthanization. Upon further inquiry, Respondent became aware that a federal
grant had been awarded to KUMC and that grant monies were being used for the
research in which the violations had occurred.

Appalled by federal funding contributing to the unethical treatment of
animals at KUMC, Respondent engaged in a proactive, peaceable campaign in
order to make the public aware of such transgressions. Respondent took
numerous measures to bring the matter to the attention of the public, and to
voice his displeasure with KUMC’s policies, including, but not limited to:
(1) organizing a protest at 39th Street and State Line; (2) making numerous
blog postings regarding KUMC’s unethical animal treatment; (3) visiting
neighborhoods and businesses surrounding KUMC to educate the public about
KUMC’s research policies; (4) organizing a rally at 47th Street and Main
Street; and (5) writing President Barack Obama to voice his displeasure with
KUMC’s use of its research grant.

Nevertheless, and despite Respondent’s efforts, KUMC continued its medical
research practices. However, three KUMC employees filed Petitions for
Temporary Orders of Protection against Respondent. Durham Petition alleged
three incidents of stalking attributable to Respondent: (1) a protest on a
sidewalk outside of her home; (2) receiving threatening voice mail messages
on her office phone; and (3) posting of the video of the protest outside her
home on Respondent’s website. Cheney Petition alleged the following
incidents of stalking: (1) Respondent and associates came to his home and
posted stickers with messages such as “Animal Murder;” (2) Respondent
circulated fliers to Petitioner’s neighbors and outside KUMC condemning
Petitioner’s role in animal research; (3) Respondent sent an email to
Petitioner directing him to Respondent’s website; and (4) Petitioner
received phone calls at work and at home “believed to be” connected to
Respondent. Dhillon Petition also alleged three incidents of stalking: (1)
Petitioner received an email from Respondent which described her as an
“animal torturer;” (2) Petitioner was sent an email containing a link to
Respondent’s website; and (3) fliers were distributed at KUMC condemning the
actions of Petitioner for her role in unethical animal research.

Respondent denies ever placing any telephone calls to any of Petitioners.
However, assuming arguendo the content of the Petitions to be true, not only
was the content of the Petitions insufficient to issue a Temporary Order of
Protection, but ordering the enforcement of Petitions violated Respondent’s
First Amendment right to freedom of speech.

Respondent’s alleged conduct not only serves a legitimate purpose but is
also constitutionally protected activity, and therefore any order issued
pursuant to K.S.A. 60-31a01, et. seq., is barred. Respondent’s purpose in
protesting outside homes of Petitioners, distributing informational fliers
regarding the nature of animal research occurring at KUMC, and directing
Petitioners to his website was to both educate the public as to research
tactics being used at KUMC and call for a change of research tactics being
used at publically-funded KUMC.

While there may be debate as to whether Respondent’s tactics in attempting
to bring about policy change are effective, there is no debate that
Respondent is within his First Amendment rights to advocate for his cause in
the manner that he did. While a majority of people may find his tactics
discomforting, his expressive conduct is still constitutionally protected.
See Virginia v. Black, 538 U.S. 343, 358 (U.S. 2003). Respondent’s actions
were targeted and specific, and evidenced a strategy to voice his concerns
regarding KUMC in a manner well within the law.

Petitioners are state employed medical researchers engaged in conducting
experiments upon primates. They no doubt have experienced public outrage on
other occasions, deserved or not, as a result of their research methods. The
article in the Kansas City Star citing 160 USDA violations of the treatment
of animals used for research initially brought such transgressions to the
public’s attention. A reasonable person in Petitioners position would expect
to receive aggressive criticism from many animal rights activists,
considering past demonstrations across the United States by animal rights
advocates, and the fact that public funds contributed to the research.

Durham Petition cites one instance of harassment being a demonstration which
was held by Respondent outside of Petitioner’s home. However, Petitioner was
not even home during the time that the demonstration was held, which took
place outside her home and on a public sidewalk. Additionally, peaceful
picketing and protesting is not considered harassment, but is expressive
conduct constitutionally protected under the First Amendment. See
Phelps-Roper v. Nixon, 545 F.3d 685, 689 (8th Cir. Mo. 2008); See also Olmer
v. City of Lincoln, 192 F.3d 1176, 1179 (8th Cir. 1999).

Furthermore, Petitioner’s presence did not, and would not, matter to
Respondent. Respondent did not engage in the demonstration to harass or
torment petitioner, but instead to voice his displeasure with the State, and
the State’s employees, regarding their treatment of animals, as is his
constitutional right. Furthermore, the posting of video of the demonstration
on Respondent’s own personal website cannot be considered stalking of
Petitioner; Respondent did not even notify Petitioner that such video was
posted. It would vastly expand the definition of stalking if posting of
one’s personal video, containing no footage of an alleged stalking victim,
on one’s own personal website could be deemed to qualify as an act of
stalking within the meaning of K.S.A. 60-31a01, et. seq.

Cheney Petition states that Respondent circulated fliers with Petitioner’s
picture and messages such as “animal murderer,” and sent Petitioner an email
directing Petitioner to Respondent’s website. The Court has continuously
recognized the right of activists to spread their message through
distribution of informational documents. See Schenck v. Pro-Choice Network,
519 U.S. 357, 358 (U.S. 1997)(“Leafletting and commenting on matters of
public concern are classic forms of speech that lie at the heart of the
First Amendment, and speech in public areas is at its most protected on
public sidewalks, a prototypical example of a traditional public forum.”).
Additionally, speech that may be offensive to one’s audience is afforded
protection under the First Amendment. See Hill v. Colorado, 530 U.S. 703,
716 (2000)(“The right to free speech, of course, includes the right to
attempt to persuade others to change their views, and may not be curtailed
simply because the speaker’s message may be offensive to his audience”).

Factually speaking, Petitioner may be an “animal murderer” in the sense
that, through the course of his employment by the State, Petitioner does
cause the death of countless animals. While Respondent’s choice of words may
not have been extremely tactful, Respondent is again within his First
Amendment right to choose the manner in which he advocates for his cause. As
our society has become ever more fast-paced and ever-changing, it sometimes
takes an extreme and exaggerated statement to get the public’s attention.
Respondent was simply trying to advocate for his cause by drawing attention
to KUMC’s research policies by using an attention-grabbing statement.
Respondent’s First Amendment rights cannot be usurped simply because
Petitioner takes offense to his message. Additionally, simply making
Petitioner aware of Respondent’s website is not an act of stalking, and
Petitioner can exhibit free will in choosing not to view the website which
Respondent suggested.

The allegations contained in Dhillon Petition simply cannot support an Order
of Protection. Petitioner was sent two emails by Respondent. Petitioner had
the choice of whether to even view those emails in the first place.
Petitioner also cites the distribution of fliers at KUMC condemning the
institutions research methods. However, Petitioner simply being aware of the
fliers is once again unjustifiable to sustain an Order of Protection.

In Madsen v. Women’s Health Ctr., 512 U.S. 753 (U.S. 1994), a Florida state
court issued an injunction, applicable to antiabortion protesters, which in
part restricted the use of “images observable” to clinic patients. On
appeal, the United States Supreme Court held that broad prohibition on all
“images observable” burdens more speech than necessary to achieve the
purpose of limiting threats to clinic patients or their families, as all
would be necessary to avoid seeing the images would be for the clinic to
close its curtains. Id. at 73. Thus, the Court held that the “images
observable” restriction violates the First Amendment. Id.

Likewise, since Petitioner’s only reported conduct is being made aware, and
ultimately viewing, images she finds offensive, an Order of Protection in
this case would operate much like an “images observable” restriction, which
violates the First Amendment. Petitioner had the option of whether to view
the emails she received. Petitioner could simply delete the email, thus
“closing the curtain” on any allegedly offensive material. Such an act would
sufficiently address the situation without unnecessarily burdening
Respondent’s First Amendment rights.

Additionally, Petitioners state that they fear for their safety. However,
none of Petitioners have ever had physical contact with Respondent.
Respondent has never physically threatened Petitioners, either in person, by
computer message, or by phone message. Once again, Respondent denies ever
making any telephone calls to Petitioners’ home or place of employment.

Petitioners in this case are state employees attempting to use an order,
which is meant to protect innocent people from dangerous and violent
offenders, to stifle criticism of their state-endorsed animal research
methods. Respondent’s alleged conduct is protected under the First
Amendment. Respondent was simply advocating for policy change in as lawful
and peaceable way as he knew, and so as to draw attention to his cause. No
doubt this is a delicate balance to strike. However, when there is doubt as
to whether speech is protected under the First Amendment, the benefit of the
doubt must be given to protecting speech rather than stifling it. See
Citizens United v. FEC, 130 S. Ct. 876 (U.S. 2010). Here, benefit of the
doubt must be given to protect Respondent’s First Amendment rights,
especially since an order under K.S.A. 60-31a01, et. seq., could have
criminal consequences for Respondent.

CONCLUSION

WHEREFORE, for all the foregoing reasons, Respondent respectfully prays that
the Court deny Petitioners Request for an Order of Protection against him,
and for such other and further relief that the Court deems just and proper
upon these premises.